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A Brief Reader’s Guide to Richard Posner

By Barry Gewen July 9, 2008 12:57 pmJuly 9, 2008 12:57 pm

Richard A. Posner (Guity Nashat)

Judge Richard A. Posner has just published a new book. That’s not news. What would be news is if he hadn’t just published a new book. Over his distinguished career, he has produced more than 40 books, and that’s not counting new editions of old ones. He’s also written numerous articles, monographs and book reviews — I stopped counting when I reached 150 and saw that I still had 20 pages of listings to go. This productivity is remarkable by itself, but even more remarkable is the high quality of Posner’s work. He is one of our most influential legal minds and one of our most prominent public intellectuals.

Yet he may not be as influential or as prominent as he should be. I think his productivity works against him. Much to the consternation of many of my friends, I’ve never read Trollope: he wrote so much that I’ve never known where to start or how I would stop. I think the same abundance intimidates many of Posner’s potential readers. They don’t know what they can profitably read and what they can profitably skip, so they don’t read anything.

Add to that Posner’s penchant for relying on algebraic formulas and equations from the social sciences to make his points. Posner likes to quantify, and sometimes he tries to quantify what isn’t quantifiable. David Brooks caught the problem perfectly in his review of Posner’s magnificently wrong-headed book “Public Intellectuals”: “Watching Posner try to apply economic laws to public debate is a bit like watching a Martian trying to use statistics to explain a senior prom. He is able to detect a few crude patterns, but he’s missing the fraught complexity of the thing.” (Btw, if you’ve never read Brooks’s wonderful review, you should take this opportunity now.)

So I thought I would try to offer a little guidance. I can’t claim to have read all of Posner’s work, or even most of it. (Who, except its author and one or two Ph.D. candidates, has?) But I’ve read or dipped into an honest sampling of it — about 10 books — so I think I can be helpful.

Posner’s latest book, “How Judges Think,” is important, if only because it’s Posner looking at his own profession from the inside. Two of the chapters, “Judges Are Not Law Professors” and “Is Pragmatic Adjudication Inescapable?,” are worth the price of admission by themselves. The book can be read as one long screed against the jurisprudence of Supreme Court Justice Antonin Scalia, and stands as a refutation to those who believe the category of “conservative” can lazily be applied to a mind as independent as Posner’s. I also think Posner’s “Breaking the Deadlock: The 2000 Election and the Court” (2001) remains one of the most sophisticated analyses of the Supreme Court decision that handed the presidency to George W. Bush. And I am pleased that two of Posner’s books — “Overcoming Law” (1995) and “An Affair of State: The Investigation, Impeachment, and Trial of President Clinton” (1999) — made the Book Review’s best-books-of-the-year list.

But the book I would start with — the one, it seems to me, that offers the best introduction to Posner’s current thinking (and is mercifully free of algebraic equations) — is “Law, Pragmatism, and Democracy” (2003). It has a little bit of everything: Posner on free speech, on national security, on Roe v. Wade, on the Clinton impeachment, on law and economics, on his own notion of judicial pragmatism (though readers who want a fuller explication of this important idea are advised to turn to “How Judges Think”).

Most significantly, it has Posner theorizing about democracy. Posner is famous for his iconoclasm, his unsentimental opposition to idealism in all its forms, his eagerness to explode pieties, and Americans are never more pious or idealistic than in their reverence for democracy — or at least what they think democracy is. (It’s a piety that had a lot to do with getting us stuck in Iraq.)

You may not come away from “Law, Pragmatism, and Democracy” agreeing with Posner’s concept of “elite democracy,” which is his term for the way he believes American democracy actually works. But the chances are that if you give a fair hearing to his skeptical, Menckenesque argument that our democracy is all about the interaction between an ignorant, apathetic mass public and a self-selected, self-regarding, self-interested governing class, you’ll never be able to think about the American system of government in quite the same way again.

Richard Posner is a nasty fascist who would prefer that the poor suffer and die from disease and starvation than give them the help and support they need, because poverty is more efficient. See Indiana Harbor.

The Times has been exceptionally kind to Judge/Professor Posner over many years.
He has certainly been exceptionally prolific over his long career; indeed, I am inclined to think he writes faster than I can read.
That said, I am not inclined to agree with your assertion that “… he may not be as influential or as prominent as he should be. I think his productivity works against him.”
First, I would not understate his influence, particularly his role (early in his career) in putting “law and economics” on the map of legal academia in a big way. Even for those of us unconvinced by many of the particulars of his use of economics as a (or “the”) normative force in law, it is difficult to avoid reckoning with the impact of his approach in many areas of law.
In subsequent phases of his career, Posner has written extensively on law and literature, law and philosophy, and a variey of other topics (not to speak of his day job as an appellate judge writing judicial opinions). Much of this work has had a broader impact outside the legal community than within it (and particularly within the legal academy), not least because many legal academics are less impressed with its quality and depth than are those assigned to write reviews for the NY Times. It is perhaps here that your comment on his productivity hits home. Speaking only for myself, having read many of Posner’s books and articles (and read and taught a fair number of his opinions), and been largely unimpressed by their (often, and not always) scattershot, oversimplistic (for serious academic works), deliberately overstated, pedantic, and “provocative to be provacative” qualities, I have decided to ration my reading time in favor of works from which I am more likely to receive greater benefit.
I continue to struggle to understand why Judge Posner is, in fact, more prominent and influential than (in my humble opinion–and yes, I have much to be humble about) he deserves to be, at least among journalists and some part of the general public. Surely his judicial title and taste for the provocative make him newsworthy, and the frequency of his utterances (typically delivered at book length) on topics of public importance and controversy keep him in the public eye. Perhaps his appeal is also greater to those whose taste for complexity, nuance and depth, and suspicion of monocausal explanations, is less than among his fellow legal academics.

you should warn your reader that Posner is quite conservative and a real believer in the law and economics school of legal theory (and subscribes to its principle that law should maximize wealth).

moreover, a friend of mine read Posner’s book on sex and the law and came away from it concluding that whatever his legal opinions Posner has never encountered anyone who actually wanted to sleep with him.

And not to be forgotten is Posner’s Law and Literature, now in a revised edition. Still one of the best books on the subject. Posner began (in the first edition) as the Darth Vader of Law and Literature, but he appears to have modulated his position on this subject. Overall it is a very comprehensive although somewhat uneven book.

Posner is not as influential as he should be, not because he is so prolific that no one reads him, but rather because, brilliant as he is, he is a promiscuous dilettante. How I would love to see what wonderful works he would produce if only he would slow down and struggle with his material a bit.

Trollope is much better than Posner. Start with the Palliser novels; then read the Barset novels; then go into the bookstore to the Trollope shelves, close your eyes, and pick. OK, a few aren’t that great, but by and large Trollope will keep you entertained and edified for years and years and years and years and years and years.

Who has read all of Posner’s work except one or two PhD candidates? For a person as prolific as Posner, that is irrelevant. Is Mark Twain a cipher because I haven’t read everything he wrote? Hardly.

Solid statistical analysis isn’t perfect; but, it can tease out some features that are otherwise difficult to show. Biases and preferences which people would be ashamed to admit are a classic example.

You don’t like the equations? OK. But the cult of storytelling is usually further off the mark due to ideological motives and the very human tendency to remember unusual events. Storytelling preaches to the converted. But when simple equations with a bare minimum of assumptions show something? THAT wins converts.

Sure the equations should be well-informed by experience; but, they are inseparable from that rigorous intellectual iconoclasm. That’s why every few years, the Chicago School knocks one out of the park (again) and clarifies some issue our society had been puzzling over.

Judge Posner is a remarkable man. I am proud of the fact that several years ago I met him at an event where he was speaking. I told him that when reading judicial opinions all lawyers and judges were Jewish because they read the opinions just as they read Hebrew, from right to left or back to front. He laughed and told me he would use my observation when he spoke in the future. I gladly gave it to him without the need for any attribution.

So many of these comments warn of how Posner is a “fascist” or “conservative”. Why “warn” people about such a thinker? Should they not expose themselves to his thinking? How are you protecting us by warning us? Are you afraid we might actually agree with his arguments even though they go against our own status quo of belief?

To me it seems that Posner is believed above all to be dangerous. Dangerous to what? Their own worldview and prejudices, or perhaps even to the world-at-large. Frankly I find him exhilirating, for he shows us more than perhaps anyone alive today the awesome power of ideas and how they conquer the walls we build inside our own minds.

I tried to read Posner any chance I get. The man should’ve been appointed to the Supreme Court a long time ago. You can also learn a lot just by reading his judicial opinions. He tries to stay within the bounds of the law – the Constitution, statutes and prior opinions – but he will add “dicta” as to why he agrees or disagrees with a rule he just applied. Does anyone on the Supreme Court or in Congress listen? Judge Easterbrook is good too.